The medicinal effect of …. Coca Cola

Recent research from the Erasmus medical centre (Netherlands, Rotterdam) suggests that certain medicines might be taken up better by patients when administered with Coca Cola instead of water. In short, the researchers where looking for a way of helping patients who received the medicine erlotinib (Tarceva). The medicine is used to treat lung cancer patients and it is orally administered. Most of the cancer patients also use stomach protection medicines against the side effects of cancer medication. These protection medicines however lower the pH in the stomach and therefore the uptake of erlotinib in the bloodstream was not optimal. Taking the medicine with Coca Cola (which creates a temporary more acid environment in the stomach) gave spectacular results: the levels of uptake in the blood were in the average 40 % and sometimes even 100 % higher. Could Coca Cola therefore be considered to be a medicine?

Food or medicine?

At first sight, this question may seem to be somewhat far-fetched, but in this context it is interesting to know that Coca Cola was invented by a pharmacist. Furthermore, the question whether a product qualifies as a food or as a medicine is not highly theoretical. In fact, there is an important body of EU case law since the 80-ies that deals with exactly this question. This is all the more relevant, as the qualification of a food product as a medicinal product can have drastic consequences for market access. This blogpost will discuss a number of those cases, including vitamin preparations and garlic pills, and address the status of Coca Cola against that background.

(a) “any substance or combination of substances presented as having properties for treating or preventing disease in human beings; or

(b) any substance or combination of substances which may be used in or administered to human beings either with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis.”

According to the General Food Law Regulation, a food means “any substance or product, whether processed, partially processed or unprocessed, intended to be, or reasonably expected to be ingested by humans”

Are vitamin preparations medicinal products?

In order to answer this question, the national authorities should properly assess the pharmacological properties (the “function of the product”) and the presentation of the product. In the Van Bennekom case (C-227/82), relating to a Dutch national trading highly concentrated vitamin preparations in the form of tablets, pills and capsules, the European Court of Justice (“EU Court”) elaborately dealt with the presentation criterion. This was also one of the first cases where the EU Court provided a dividing line to be drawn between medicinal products and food products. In short, the EU Court ruled that the form given to the product (pills, capsules) can serve as strong evidence of the intention of the manufacturer or seller to market a medicinal product, but is not conclusive in its own right. However, the concept of presentation with respect to borderline products must be broadly conceived in order to protect consumers. Therefore, a product can qualify as medicinal product if any well-informed consumer, based on the presentation of the product, gains the impression this is actually a medicinal product.

Do Member States differ on the qualification of borderline products?

Yes, they sometimes do. This was clearly demonstrated in the Delattre case (C-369/88). In this case, products that were sold in Belgium as supplements and cosmetics qualified as medicinal products in France. The EU Court ruled that the products were presented as having positive effects on certain body functions, like the functioning of the gastro intestinal tract or liver and therefore, they were covered by the Medicial Products Directive. The French authorities could qualify the products as medicinal products, even if in Belgium these products qualified as foods and cosmetics. The national authorities and courts will have to judge on a case-by-case basis if a product is either a food or a medicinal product. If the product can be qualified as food and or cosmetic and as a medicinal product, the product is considered a medicinal product and not both.

Are Garlic pills medicinal products?

The so-called Garlic case (C-319/05) related to food supplements that were presented in a capsule form. The German authorities qualified these supplements as a medicine, but the EU Court did not agree. Although the supplements had a capsule form, the EU Court ruled that this form is not exclusive to medicinal products. Moreover, the supplements did not contain any mention that they aimed to prevent or treat a certain disease. Furthermore, although the beneficial effect from the active ingredient allicin was recognized, this effect did not transcend the normal metabolism of garlic. Therefore, the food supplements were not considered to be medicinal products, neither by presentation, nor by function.

Qualification of Coca Cola as a medicinal product?

Against the above background, could Coca Cola possibly be qualified as a medicinal product? For sure, it will not qualify as such by presentation. The product is sold in a bottle or as a can in quantities that exceed by far the average medicinal product. It is not recommended for care or cure, but to refresh at most. The qualification by function is a different story, as it does present some positive effects on certain body functions. The Erasmus research has demonstrated that taking the medicine erlotinib (Tarceva) together with a glass of Coca Cola will temporarily lower the pH in the stomach, back to the acidity levels prior to taking any stomach protection. In essence the Coca Cola restores a body function. A regular soft drink does not have this effect and one could therefore argue that Coca Cola does have a medicinal function. The pharmacological properties of Coca Cola as such are not substantial, although the effect in combination with the medicine can be. The boundaries between food and medicinal products are not set in stone but keep on moving.

The author thanks Floris Kets, trainee at Axon Lawyers, who had the great idea for this post.